Sub judice rules hold juries in contempt

The cacophony of voices always ready to demand the gagging of the British press never fails to astound me. No sooner had four suspects been arrested in connection with the failed July 21 London bomb attacks than a chorus of the usual suspects was loudly complaining that the somewhat robust coverage of their arrest in certain newspapers - "Got the Bastards" (Sun); "Brave police catch ALL the suicide bombers" (Daily Express) - was jeopardising their right to a fair trial and that the papers' freedom to report as they saw fit should be curtailed.

Liberty's Shami Chakrabarti has written to the attorney general, Lord Goldsmith, demanding that he warn the press to tone down its reporting or face contempt charges. Mark Stephens, for some inexplicable reason TV's favourite media lawyer, complains that the attorney general is "pusillanimous" and even too scared to "take the media on". Another lawyer who has defended terror suspects also calls on the attorney general to act against the press.

It is an unholy alliance of the civil-liberties industry and the burgeoning human-rights branch of the legal profession that seems keen to champion everybody's freedom - except that of the press. When supposedly freedom-loving folk want Lord Goldsmith to determine what we can read, you begin to appreciate how wafer-thin press freedom is in this country. True libertarians would be calling for an end to Britain's anachronistic sub judice rules - rather than their strict application by his lordship.

The idea that a jury risks contamination and that jurors will not be able to come to a fair verdict because they have read some (possibly warped) report about the case or the accused hails from a bygone age when the ruling elite thought juries could not be trusted to come to the "right" verdict unless closely protected and guided by the legal establishment. In this more democratic age it is surely time to start treating jurors as adults equipped to sift through the evidence.

In the United States, sub judice fought a losing battle in the 20th century with the first amendment to the constitution, which guarantees freedom of the press. Whenever US judges were asked to choose between sub judice and the first amendment, they tended in general to side with the newspapers' right to print whatever they thought fit for publication. But then US judges, unlike their British counterparts, have an admirable record in defending press freedom.

We still labour under the Contempt of Court Act 1981, which says newspapers and broadcasters can be prosecuted if they "create a substantial risk that the course of public justice will be seriously impeded or prejudiced" by commenting or reporting on a case after arrests have been made (or even arrest warrants issued). British judges are sensitive about their courts being treated with contempt and have implemented a strict interpretation of the law which, in effect, gags the media from saying anything about a case once arrests have been made - even though there is precious little evidence to show that juries have ever been "contaminated" by press coverage.

As a journalist brought up under Britain's strict sub judice rules, I was initially surprised, even shocked, while covering the run-up to the OJ Simpson trial by the free flow of news and speculation about the case. But I do not believe it affected the jury's verdict and I came to see it as preferable to the wall of silence that descends on British cases, even when the issues involved are of pressing public interest. In any case, the wall of silence is increasingly hard to maintain in the age of the internet, which politicians or even judges cannot control in a democracy.

Concern has been expressed that aspects of the interrogation of suspected Oval bomber Hussein Osman, held in Italy while Britain seeks his extradition, were leaked to Italian newspapers then reprinted in ours. But is it seriously suggested that newspapers should not report this news when it was being discussed on every blog and chatroom devoted to such matters?

I do not argue that we need to go as far as the US and dispense with sub judice. But I do think the US has a more democratic, grown-up attitude towards juries and that, instead of buckling under the pressure for the strict interpretation of sub judice rules, Lord Goldsmith would be better employed devising more liberal guidelines so that there does not need to be a news and comment blackout once anybody is arrested and charged.

Free the press. Trust the jury. Two calls around which any self-respecting civil liberties group or human rights lawyer should rally in 21st-century Britain. Instead, all we hear are voices calling for the press to be even more cribbed and confined - from the very people who are meant to be guardians of our freedoms. Strange times indeed.